D&M Roofing & Siding v. Distribution, Inc.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
D&M Roofing and Siding, Inc., appellant,
v. Distribution, Inc., appellee.
___ N.W.3d ___
Filed June 28, 2024. 	No. S-23-516.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. Jurisdiction: Statutes: Appeal and Error. The requirements of a stat-
ute underlying a right to appeal are mandatory and must be complied
with before the appellate court acquires jurisdiction over the subject
matter of the action.
4. Jurisdiction: Judgments: Fees: Time: Appeal and Error. An appel-
late court has no power to exercise appellate jurisdiction in proceedings
to review the judgment of the district court unless the appellant filed
a notice of appeal and deposited a docket fee in the office of the clerk
of the district court within the time fixed and as provided in Neb. Rev.
Stat. § 25-1912 (Cum. Supp. 2022).
5. Judgments: Final Orders: Words and Phrases. A “judgment ren-
dered,” as required by Neb. Rev. Stat. § 25-1911 (Reissue 2016), is a
final determination of the rights of the parties in an action, which is set
forth by the court in a single, signed written document stating all of the
relief granted or denied in an action.
6. ____: ____: ____. A “judgment” is a court’s final consideration and
determination of the respective rights and obligations of the parties to
an action as those rights and obligations presently exist upon the matters
submitted to the court in the action.
7. Judgments: Final Orders. A judgment must dispose of the case fully
and leave nothing for further determination except for compliance or
noncompliance with its terms.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:41 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
8. ____: ____. The test for a final judgment is whether the rights of the
parties are concluded so that further proceedings cannot affect them.
9. Judgments: Final Orders: Appeal and Error. To constitute a final,
appealable judgment, the trial court’s determination must either decide
and conclude the rights of the parties involved or deny a party the
means to prosecute or defend rights and interests in the subject matter
of the proceeding.
10. Judgments: Words and Phrases. A judgment in the most general sense
is a judicial act that establishes rights and liabilities to the extent pos-
sible in a particular suit.
11. Judgments. Orders and other declarations of a trial court are the build-
ing blocks for a judgment.
12. Final Orders. Final orders are defined in Neb. Rev. Stat. § 25-1902
(Cum. Supp. 2022), which recognizes four categories of final orders;
some categories pertain to actions, and one pertains to special
proceedings.
13. Actions: Statutes: Words and Phrases. An action is any proceeding
in a court by which a party prosecutes another for enforcement, protec-
tion, or determination of a right or the redress or prevention of a wrong
involving and requiring the pleadings, process, and procedure provided
by the statute and ending in a final judgment.
14. Judgments: Final Orders. Judgments and final orders are mutually
exclusive.
15. Final Orders: Words and Phrases. Finality is determined under an
objective standard by the substance of the decision and its legal effect,
rather than by particular words or phrases.
16. Judgments. An order is not a judgment simply because the trial court
declares it so.
17. Actions: Judgments: Final Orders. Any action purporting to be a
judgment, decree, or final order must be rendered and entered to be
valid, as provided in Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2022).
18. Judgments: Final Orders: Words and Phrases. A final, appealable
judgment is one that disposes of the case by dismissing it either before
hearing is had upon the merits or after trial by rendition of judgment for
the plaintiff or defendant.
19. Actions: Judgments. It is critical to the rendition of a judgment that
the court formally grant or deny all of the relief sought in the action
before it.
Appeal from the District Court for Lancaster County, Lori
A. Maret, Judge. Appeal dismissed.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
Tiffany S. Beerman and Gretchen L. McGill, of Dvorak Law
Group, L.L.C., for appellant.
Adam J. Prochaska and Sheila A. Bentzen, of Rembolt
Ludtke, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The plaintiff, a roofing company, sued the defendant, the
owner of a warehouse, for breach of contract after the prop-
erty owner decided to use a different contractor for the repairs
of a damaged roof. Both parties moved for summary judg-
ment. The plaintiff conceded in filings required for summary
judgment that it was undisputed that “[t]he breach of contract
damages [the plaintiff] claims in this lawsuit are limited to
those damages that [the plaintiff] is entitled to under para-
graph 15 of the [contract]” and “[t]he breach of contract
damages that [the plaintiff] claims in this lawsuit are 20% of
the amount paid by [the defendant’s insurer] to [the defend-
ant] pursuant to the policyholder’s release.” The district court
observed this admission and held that while there was a
breach of the contract, the damages provision of paragraph 15
of the contract entitled the plaintiff to 20 percent of the work
done, and no work was done. Therefore, the plaintiff was not
entitled to damages. The court granted the defendant’s motion
for summary judgment asking the court to limit the plaintiff’s
breach of contract damages to those set forth under paragraph
15 of the contract. It also granted the defendant’s motion for
summary judgment as to an unjust enrichment claim that is no
longer at issue in this appeal. The court expressly dismissed
the unjust enrichment claim but did not expressly dismiss the
claim for breach of contract, nor did it expressly dismiss the
overall action.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
More than 30 days later, the plaintiff again moved for sum-
mary judgment, this time alleging lost profits as the measure
of damages for the breach of contract claim. The district court
construed the motion as a motion to reconsider. The court
explained that even though its prior order did not use the
word “dismissed,” it had disposed of the whole merits of the
case and left nothing for the court’s further consideration. The
court denied the plaintiff’s motion and granted a cross-motion
by the defendant for summary judgment. In its order, the court
again did not state that either the claim for breach of contract
or the plaintiff’s overall action was dismissed. The plaintiff
appeals. We dismiss the appeal for lack of jurisdiction.
II. BACKGROUND
1. Complaint
D&M Roofing and Siding, Inc. (D&M), sued Distribution,
Inc., alleging breach of contract and unjust enrichment. D&M
alleged that it had performed all conditions precedent under
a “Commercial Contingency Agreement” (Agreement) with
Distribution. Under the Agreement, D&M would perform ser-
vices related to repairing hail damage to the roof of a com-
mercial warehouse owned by Distribution, which was subject
to an insurance claim. In exchange, Distribution would pay
D&M the amount of the approved claim.
D&M alleged that Distribution’s insurer approved the claim
in the amount of $870,757.31. Distribution later advised D&M
that it was canceling the agreement and that a different contrac-
tor would repair the roof damage.
In its complaint, D&M alleged it had sustained no less than
$174,151.46 in damages because of the breach of contract.
This figure is 20 percent of $870,757.31.
D&M 	alleged 	in 	the 	alternative 	that 	Distribution 	was
unjustly enriched by D&M’s inspection and presentation of
findings of roof damage, which Distribution used to obtain
its insurer’s approval for the repairs. D&M alleged the same

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
amount, $174,151.46, as reflective of the value of D&M’s ser-
vices that it performed.
2. Discovery
The parties’ relationship began after D&M received a lead
from a third-party telemarketing company about damage to
Distribution’s property. D&M’s president, Eric Oberembt, tes-
tified by deposition that D&M hires independent contractors
to do roofing work. D&M’s specialty is recognizing storm
damage and assisting property owners’ insurance carriers dur-
ing the inspection process so they do not miss anything and
“can’t come out and go that’s not damage to try and deny
the claim.”
D&M contacted Distribution and conducted a free inspec-
tion of the roof. D&M took pictures of the damage and cleaned
out a drain. D&M then prepared a report for Distribution.
After D&M and Distribution signed the Agreement, the direc-
tor of claims for D&M met with an adjuster for Distribution’s
insurer several times at the property. D&M had a contractor
prepare an estimate for fully replacing the roof, which estimate
Distribution forwarded to the adjuster. The adjuster brought
in another roofing contractor, Stonebrook Exterior, to provide
another estimate.
Eventually, Distribution settled its claim with its insurer for
$936,028.88 less the deductible. The insurer paid Distribution
$886,028.88. 	Distribution 	entered 	into 	a 	contract 	with
Stonebrook Exterior to repair the roof and informed D&M that
it was using another roofing contractor.
Oberembt testified by deposition that he was aware that
Distribution did not want to remove the damaged roof and
fully replace it. He testified it was D&M’s practice to always
sign a second contract with the customer once the scope of
the work and price were established. If the customer refuses
to sign the second agreement, Oberembt believed the cus-
tomer would have to pay the cancellation fee set forth in the
first contract. Oberembt conceded that D&M did not have to

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
pay a cancellation fee if D&M decided not to go forward with
the second contract.
It was Oberembt’s understanding that, because Distribution
hired Stonebrook Exterior instead of D&M to conduct the
repairs, the cancellation fee provision of the Agreement enti-
tled D&M to 20 percent of the scope of the work approved by
the insurance company, not 20 percent of the work actually
performed by D&M. It was Oberembt’s understanding that
such provision is “kind of an industry standard.” Oberembt
said the 20-percent figure did not represent D&M’s actual loss
based on the breach of contract, which he believed would be
lost profits, which “is what I’d like to sue for.” When asked
about the fact that the cancellation fee provision set forth
20 percent of the “‘work done,’” Oberembt testified, “[M]y
assumption . . . is that when that was typed it was a typo
because it should be work to be done.”
In its requests for admissions, Distribution asked D&M
to admit that “in this lawsuit, Your only claim for damages
is based upon paragraph 15 of the [Agreement].” D&M’s
response was: “Deny. Plaintiff also has an unjust enrichment
claim against Defendant.”
3. Agreement
(a) Job Description
The Agreement, under “Job Description,” described that
D&M would
supply all of the labor and materials required to perform
the following work for the Owner as an independent
contractor: inspect property for storm damage, present
our findings to the insurance company; perform the work
contained in the list of work approved and agreed to by
the insurance company.
Furthermore, “[b]y this Agreement, [Distribution] irrevocably
awards [D&M] the job to do all the work that is included in
the final list of work approved and agreed to by the insurance
company.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
(b) Price and Scope
Under “Price and Scope of Work,” the Agreement set forth
that “no final price is yet known” and that “the work to be
performed pursuant to this Agreement will be done under the
benefits of an insurance claim.”
Nevertheless, Distribution agreed that “the final contract
price for this Agreement, including the allowed profit and
overhead, taxes, disposal fees, etc.” shall be “the total claim
amount allowed and agreed to by the insurance company.”
The scope of the work “shall be the list of work agreed to
by the Owner’s insurance company, which includes all work
agreed upon with the insurance company to restore the prop-
erty to its pre-loss condition.”
(c) Cancellation Fee
Under paragraph 15 of the Agreement, entitled “Cancellation
Fee,” the Agreement stated:
The Property Owner acknowledges that if the approval
is given by the insurance company for the work or any
work to replace or repair the storm damage caused to
the Property Owner and the Property Owner does not
engage the services of [D&M] to complete the building,
the Property Owner shall pay a fee to [D&M] equivalent
to 20% of the proceeds paid by the insurance company
for the work done by [D&M].
4. D&M’s First Motion for
Summary Judgment
D&M moved for summary judgment generally asking for
judgment in its favor and against Distribution. At the hear-
ing on the motion, D&M argued that the court’s disposition
of the competing motions for summary judgment turned “on
the enforceability of the contract and the enforceability of the
liquidated damages provision.” In D&M’s brief in support of
summary judgment, D&M relied on the “liquidated damages
provision” of the cancellation fee provision of the Agreement

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
to argue it was “entitled to summary judgment on its dam-
ages against [Distribution].” This provision, explained D&M,
entitled it to 20 percent of any sums paid to Distribution by its
insurer for work to be completed on the roof.
5. Distribution’s First Cross-Motion
for Summary Judgment
Distribution filed a cross-motion for summary judgment
asking for summary judgment in its favor and against D&M
“in the following respects.” First, Distribution asserted the
Agreement was unenforceable as a matter of law or that D&M
was estopped from enforcing it. Alternatively, Distribution
asked for an order limiting D&M to breach of contract dam-
ages as set forth under the Agreement. It also asked that the
court dismiss the unjust enrichment action.
In its statement of undisputed facts in support of its cross-
motion for summary judgment, Distribution set forth that
“[t]he breach of contract damages that D&M claims in this
lawsuit are limited to those damages that D&M is entitled to
under paragraph 15 of the [Agreement].” In D&M’s annotated
statement of disputed facts in opposition to Distribution’s
motion for summary judgment, D&M conceded this was
“undisputed.”
Distribution also set forth in its statement of undisputed
facts in support of its cross-motion for summary judgment that
“[t]he breach of contract damages that D&M claims in this
lawsuit are 20% of the amount paid by [Distribution’s insurer]
to Distribution pursuant to the policyholder’s release.” D&M
again conceded this was “undisputed.”
In its brief in support of summary judgment, Distribution
stated its motion for summary judgment sought a determina-
tion that the contract was not enforceable as a matter of law.
Alternatively, if the court found the contract was enforceable,
then the Court should enter summary judgment in its
favor and against D&M in the following respects: (1)

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
the Contract specifically identifies the breach of contract
damages that D&M can seek in this lawsuit and D&M’s
damages must be similarly limited; and (2) D&M’s unjust
enrichment cause of action should be dismissed as a mat-
ter of law.
In 	its 	alternative 	argument, 	Distribution 	stated 	that 	the
breach of contract damages claimed by D&M in the lawsuit
were solely those damages outlined in paragraph 15 of the
Agreement, which damages are 20 percent of the proceedings
paid by the insurer “for the work done by [D&M].” In its
reply brief in support of its motion for summary judgment,
Distribution stated that “interpreting paragraph 15 of the
[Agreement] is essential to ensure that [D&M’s] alleged dam-
ages are contractually allowed.”
6. Order on December 21, 2022
In an order on December 21, 2022, the district court over-
ruled D&M’s motion for summary judgment and sustained in
part and overruled in part Distribution’s motion for summary
judgment. It sustained Distribution’s motion “on the following
issues: [D&M] is limited to the breach of contract damages
identified in the Agreement and [D&M’s] unjust enrichment
claim should be dismissed as a matter of law.” The court stated
that “[i]n all other respects,” it was overruling Distribution’s
motion for summary judgment. The court’s order did not
expressly “dismiss” the breach of contract claim or the overall
action. The order is signed and file stamped.
(a) Enforceable Contract That Was Breached
In reaching these conclusions, the court first found that the
price and scope of the work were sufficiently definite and that
the parties had sufficient mutuality of obligation. Thus, the
parties had entered into an enforceable contract. Furthermore,
the court found no genuine issue that Distribution breached
the contract by hiring a different contractor.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
(b) No Damages for Breach of Contract
The district court said, “The next question [was] whether
[D&M] owes [Distribution] any damages.” The court con-
cluded that D&M was not entitled to any damages because
it was not entitled to the cancellation fee under paragraph 15
of the Agreement and D&M had conceded that its breach of
contract damages were limited to those to which it was entitled
under the cancellation fee provision.
In so concluding, the court expressly recognized D&M’s
admission that “its breach of contract damages [were] limited
to the [c]ancellation [f]ee in [p]aragraph 15 of the Agreement.”
The district court then found that, under the clear and unam-
biguous language of paragraph 15, D&M was only entitled
to a cancellation fee of 20 percent of the “work done” by
D&M. Lastly, the district court found that the conditions
of the cancellation fee provision had not been met, because
“the ‘work’ referred to [in] Paragraph 15 plainly refers to the
work approved by the insurance company to repair or replace
[Distribution’s] storm-damaged property” and D&M admit-
ted “it did not perform any of the repair or replacement work
approved by the insurer.” Thus, D&M was not entitled to the
cancellation fee.
The court granted summary judgment in favor of Distribution
on D&M’s unjust enrichment claim. It explained that an
enforceable contract displaces such a claim.
7. D&M’s Second Motion
for Summary Judgment
February 3, 2023
No appeal was filed from the court’s order entered on
December 21, 2022. On February 3, 2023, D&M filed a second
motion for summary judgment.
In the motion, D&M pointed out that the court had found
there 	was 	an 	enforceable 	contract 	and 	that 	Distribution
breached that contract. D&M then asserted that “there is no
genuine dispute of material fact with respect to [D&M’s]
resulting damages.”

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
In its statement of undisputed material facts in support
of its motion, D&M set forth that its projected profit based
on the scope of the work discussed with Distribution was
$429,904.81, while its projected profit based on the work per-
formed by the contractor that Distribution ultimately used for
the repairs would have been $344,663.65. Distribution denied
these assertions of undisputed facts.
In its brief in support of its second motion for summary
judgment, D&M asserted that the December 21, 2022, order
did not dispose of its breach of contract claim, but, rather, only
found it was not entitled to the cancellation fee. “As such, the
Order does not make a ruling as to any other remaining mea-
sure of damages [D&M] is entitled to under Nebraska law for
breach of contract.”
D&M also believed it significant that the cancellation fee
was “not a breach of contract provision.” “As such, just
because [D&M] did not dispute, for purposes of its first sum-
mary judgment motion, it was seeking damages under the
Cancellation Fee provision, that does not preclude it from
recovering its other breach of contract damages under the law.”
D&M relied on Western Ethanol Co. v. Midwest Renewable
Energy 1 for the proposition that an admission does not extend
beyond the intendment of the admission as clearly disclosed
by its context.
D&M asserted that the court’s statement in the December
21, 2022, order that “‘[D&M] admits that its breach of con-
tract damages are limited to the Cancellation Fee in Paragraph
15 of the Agreement’” was “not what the evidence before the
Court indicated.” D&M highlighted that its admission was
that the breach of contract damages D&M claimed “in this
lawsuit” were limited to those it was entitled to under para-
graph 15 of the Agreement. It then asserted:
1 Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938
N.W.2d 329 (2020).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
There is no support under Nebraska law that [D&M]
is limited to damages pursuant to a “cancellation fee”
provision, and it would be a waste of judicial resources
to require [D&M] to file another lawsuit for breach of
contract to seek the damages it is entitled to pursuant to
well-established Nebraska law.
Finally, because the December 21, 2022, order did not
expressly dismiss D&M’s claim for breach of contract, D&M
asserted that its action was still before the court. D&M pointed
out that its complaint did not expressly limit its damages to
the cancellation fee provision. D&M argued there was no
genuine issue that it was entitled to damages that would place
it in the position it would have been in had the contract been
performed. Thus, D&M asserted it was entitled to the profits
it would have realized had D&M been allowed to perform the
work contemplated by the contract.
In its brief in opposition to Distribution’s motion for sum-
mary judgment, D&M contested the idea that the court’s
December 21, 2022, order determined it was not entitled to
any damages for Distribution’s breach of the Agreement. Were
this the case, argued D&M, the court would have granted
Distribution’s motion for summary judgment in full. D&M
also reiterated that “[j]ust because [D&M] did not dispute—for
purposes of its first summary judgment motion—that it was
seeking damages under the Cancellation Fee provision does
not preclude it from recovering its other breach of contract
damages under the law.” D&M again pointed out that its com-
plaint generally claimed damages as a result of the breach of
the contract.
8. Distribution’s Second Motion
for Summary Judgment
Distribution, 	in 	response, 	filed 	a 	second 	cross-motion
for summary judgment. The motion asserted that “because
the 	Contract 	specifically 	identifies 	the 	damages 	that
[Distribution] can seek in this lawsuit, [D&M] is not ‘entitled

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
to compensation for the partial work performed in addition
to the Cancellation Fee,’” and that D&M has, in fact, “not
sought any damages in this lawsuit other than those outlined
by the Cancellation Fee.”
In its statement of undisputed material facts in support of its
motion, Distribution again set forth: “The breach of contract
damages that D&M claims in this lawsuit are limited to those
damages that D&M is entitled to under paragraph 15 of the
[Agreement].” This time, however, D&M responded that this
fact was disputed.
In its brief in support of its cross-motion for summary judg-
ment, Distribution pointed out that parties to a contract may
agree in advance to the sum to be paid in the event of a breach
and that D&M admitted its cancellation fee was reasonable in
the roofing industry.
The court’s order on December 21, 2022, argued Distribution,
“resolved all issues in this case.” Distribution explained that its
motion “was filed to give the Court a vehicle to dismiss this
case in its entirety.”
In a brief in opposition to D&M’s second motion for sum-
mary judgment, Distribution again asserted that the December
21, 2022, order “effectively resolved all issues in this case.”
Distribution pointed out that “for the first time in nearly two
years of litigation, [D&M] attempts to claim damages for
lost profits.” This was “despite the fact that its Complaint
and discovery responses only identify damages under (1)
the Cancellation Fee and (2) its unjust enrichment claim.”
Distribution argued that D&M “cannot now withdraw its
admissions, modify its theory of recovery, and seek alterna-
tive damages.”
At the summary judgment hearing, the court admitted into
evidence, without objection, D&M’s prior statement of dis-
puted facts in opposition to Distribution’s motion for sum-
mary judgment, wherein D&M agreed it was “undisputed”
that “[t]he breach of contract damages that D&M claims in
this lawsuit are limited to those damages that D&M is entitled

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
to under paragraph 15 of the [Agreement]” and that “[t]he
breach of contract damages that D&M claims in this lawsuit
are 20% of the amount paid by [the insurer] to Distribution
pursuant to the policyholder’s release.”
9. June 12, 2023, Order
In an order on June 12, 2023, the court overruled D&M’s
motion for summary judgment and sustained Distribution’s
cross-motion for summary judgment. The court again did not
expressly dismiss the action in its order.
The 	court 	explained 	that 	its 	prior 	order 	sustained
Distribution’s motion for summary judgment only in part
because it found the Agreement was an enforceable contract.
Nevertheless, “[t]he Court’s order on December 21, 2022[,]
disposed of the whole merits of the case and left nothing for
the Court’s further consideration.” While the court acknowl-
edged that it did not expressly dismiss the breach-of-contract
claim, “no magic words were needed.” The court concluded:
“To repeat, nothing was left for the Court to decide on either
the breach of contract or unjust enrichment claim after the
December 21 order.”
The district court concluded that D&M’s second motion
for summary judgment was effectively a motion to reconsider
the December 21, 2022, order. And the court declined to
reconsider its decision. The court said it had relied on D&M’s
admission that its breach of contract damages were limited
to those under paragraph 15. The court found that D&M’s
annotated statement of disputed facts was a formal act in the
course of judicial proceedings and, thus, was a judicial admis-
sion. While this admission did not extend beyond the intent
as disclosed by its context, it was made in the context of
Distribution’s motion for summary judgment asking the court
to hold as a matter of law that “‘[t]he Contract specifically
identifies the breach of contract damages that D&M can seek
in this lawsuit and D&M must be limited to those damages.’”

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
D&M ROOFING & SIDING v. DISTRIBUTION, INC.
Cite as 316 Neb. 952
The court said that D&M would “like to start over,” but “[i]t
is too late.” The court did not state in the order that the action
was dismissed.
D&M filed a notice of appeal within 30 days of the June 12,
2023, order.
III. ASSIGNMENTS OF ERROR
D&M assigns that the district court erred in (1) holding that
the December 21, 2022, order was a dispositive final order and
D&M’s second motion for summary judgment was effectively
a motion to reconsider; (2) failing to address the common-law
damages for breach of contract; (3) holding that D&M is bound
to undisputed facts in the first motions for summary judgment;
and (4) holding that “there is no recourse against a party that
breached an enforceable contract.”
IV. STANDARD OF REVIEW
[1,2] A jurisdictional question which does not involve a
factual dispute is determined by an appellate court as a matter
of law. 2 An appellate court independently reviews questions of
law decided by a lower court. 3
V. ANALYSIS
Distribution asserts that we lack appellate jurisdiction over
the present appeal because D&M failed to timely appeal from
the December 21, 2022, order, which was a final order or a
judgment that disposed of the whole merits of the case and
left nothing for the court’s further consideration. D&M argues
there is appellate jurisdiction because the December 21 order
was neither a final order, nor a judgment. It asserts that the
June 12, 2023, order was the judgment and that it has timely
appealed therefrom. We hold that the court has yet to issue a
2 Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128
(2022).
3 Id.

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final order or render a judgment; thus, we lack jurisdiction
over the present appeal.
[3] The Nebraska Constitution expressly provides for “such
appellate jurisdiction as may be provided by law.” 4 The
requirements of a statute underlying a right to appeal are
mandatory and must be complied with before the appellate
court acquires jurisdiction over the subject matter of the
action. 5
[4] Pursuant to Neb. Rev. Stat. § 25-1911 (Reissue 2016),
for an appellate court to acquire jurisdiction of an appeal, the
party must be appealing from a “judgment rendered or final
order.” 6 An appellate court has no power to exercise appel-
late jurisdiction in proceedings to review the judgment of the
district court unless the appellant filed a notice of appeal and
deposited a docket fee in the office of the clerk of the district
court within the time fixed and as provided in Neb. Rev. Stat.
§ 25-1912 (Cum. Supp. 2022). 7
Section 25-1912 provides:
The proceedings to obtain a reversal, vacation, or modifi-
cation of judgments and decrees rendered or final orders
made by the district court . . . shall be by filing in the
office of the clerk of the district court in which such
judgment, decree, or final order was rendered, within
thirty days after the entry of such judgment, decree,
or final order, a notice of intention to prosecute such
appeal . . . .
Under Neb. Rev. Stat. § 25-1301(3) (Cum. Supp. 2022),
“[t]he entry of a judgment, decree, or final order occurs when
4 Neb. Const. art. V, § 2.
5 Mathiesen v. Kellogg, 315 Neb. 840, 1 N.W.3d 888 (2024).
6 See, also, id.
7 See State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998). See, also,
Priesner v. Starry, 300 Neb. 81, 912 N.W.2d 249 (2018); Lindsay Internat.
Sales & Serv. v. Wegener, 297 Neb. 788, 901 N.W.2d 278 (2017); State v.
Flying Hawk, 227 Neb. 878, 420 N.W.2d 323 (1988).

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the clerk of the court places the file stamp and date upon
the judgment, decree, or final order” and, “[f]or purposes of
determining the time for appeal, the date stamped on the judg-
ment, decree, or final order shall be the date of entry.”
Rendition 	of 	a 	judgment 	is 	defined 	by 	§ 	25-1301(2).
“Rendition of a judgment” used to be defined as “the act of
the court, or a judge thereof, in signing an order of the relief
granted or denied in an action.” 8 However, § 25-1301(2)
was amended effective November 14, 2020. 9 It now defines
“[r]endition of a judgment” as “the act of the court, or a judge
thereof, in signing a single written document stating all of the
relief granted or denied in an action.” 10
[5] Section 25-1301(1) continues to define a “judgment”
as “the final determination of the rights of the parties in
an action.” Thus, a “judgment rendered,” as required by
§ 25-1911, is a final determination of the rights of the parties
in an action, which is set forth by the court in a single, signed
written document stating all of the relief granted or denied in
an action.
[6,7] We have explained that a “judgment” is a court’s final
consideration and determination of the respective rights and
obligations of the parties to an action as those rights and obli-
gations presently exist upon the matters submitted to the court
in the action. 11 A judgment must dispose of the case fully and
leave nothing for further determination 12 except for compli-
ance or noncompliance with its terms. 13
[8-10] It has been said that the test for a final judgment
is “whether the rights of the parties are concluded so that
8 § 25-1301(2) (Cum. Supp. 2018).
9 See Neb. Laws 2020, L.B. 1028, § 3.
10 § 25-1301(2) (Cum. Supp. 2022) (emphasis supplied).
11 See, State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465
(1999); 46 Am. Jur. 2d Judgments § 1 (2017).
12 Mathiesen v. Kellogg, supra note 5.
13 49 C.J.S. Judgments § 10 (2021).

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further proceedings cannot affect them.” 14 “To constitute a
final, appealable judgment, the trial court’s determination
must either decide and conclude the rights of the parties
involved or deny a party the means to prosecute or defend
rights and interests in the subject matter of the proceeding.” 15
“A judgment in the most general sense is a judicial act that
establishes rights and liabilities to the extent possible in a
particular suit . . . .” 16
[11] There is no judgment “when something further in the
nature of judicial action on the part of the court is essential to
a final determination of the rights of the parties.” 17 When there
is something further for the court to do in relation to a final
determination of the rights of the parties, the court’s direction
is merely an order. “[O]rders and other declarations of a trial
court are the building blocks for a judgment.” 18 Pursuant to
Neb. Rev. Stat. § 25-914 (Reissue 2016), “[e]very direction of
a court or judge, made or entered in writing and not included
in a judgment, is an order.”
[12] “Final orders,” which are subject to immediate appeal,
are defined in Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2022).
Section 25-1902 recognizes four categories of final orders;
some categories pertain to actions, and one pertains to special
proceedings. 19
[13] An action is any proceeding in a court by which a
party prosecutes another for enforcement, protection, or deter-
mination of a right or the redress or prevention of a wrong
involving and requiring the pleadings, process, and procedure
provided by the statute and ending in a final judgment. 20
14 46 Am. Jur. 2d, supra note 11, § 168 at 548.
15 4 Am. Jur. 2d Appellate Review § 82 at 729 (2018).
16 49 C.J.S., supra note 13, § 4 at 30.
17 46 Am. Jur. 2d, supra note 14, § 168 at 549.
18 49 C.J.S., supra note 13, § 4 at 30.
19 Mann v. Mann, 312 Neb. 275, 978 N.W.2d 606 (2022).
20 Tegra Corp. v. Boeshart, 311 Neb. 783, 976 N.W.2d 165 (2022).

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Every other legal proceeding by which a remedy is sought by
original application to a court is a special proceeding. 21
[14] Orders disposing of summary judgment motions in
an action for breach of contract action and unjust enrich-
ment are not made in special proceedings. 22 Thus, to be a
final order, the orders here in question must have affected
a substantial right and, in effect, determined the action and
prevented a judgment 23 or affected a substantial right on sum-
mary application after the judgment was entered. 24 Summary
applications after the judgment are rare and include orders
amending a return of service, denying a motion to approve
a supersedeas bond, vacating a default judgment, awarding
of attorney fees and expenses, and modifying a permanent
injunction. 25 Orders that, in effect, determine the action and
prevent a judgment are even less common and should not be
confused with a judgment, which is an order that disposes of
the whole merits of an action. 26 An order intending to dispose
of the whole merits of the action, but that fails to do so, does
not by default became a final order that, in effect, determines
the action and prevents a judgment. Judgments and final
orders are mutually exclusive. 27 The court’s orders presented
in the record on this appeal neither prevented a judgment, nor
were made after a judgment. In sum, neither was a final order
under § 25-1902. Therefore, for this court to have appellate
jurisdiction, D&M had to timely appeal from a rendition of
a judgment.
21 Id.
22 See id.
23 § 25-1902(1)(a).
24 § 25-1902(1)(c).
25 See John P. Lenich, What’s So Special About Special Proceedings? Making
Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001).
26 See id.
27 Florence Lake Investments v. Berg, 312 Neb. 183, 978 N.W.2d 308 (2022).

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[15,16] The court was correct in stating that finality is
determined under an objective standard by the substance of
the decision and its legal effect, rather than by particular
words or phrases. 28 A judgment’s meaning is determined, as a
matter of law, by the contents of the judgment in question. 29
An order is not a judgment simply because the trial court
declares it so. 30
[17] However, finality with respect to the legal merits of
the elements of the claims in an action is not necessarily
coterminous with disposing of the case fully and leaving noth-
ing for further determination. It is also distinct from how the
judgment must be formally entered on the record to be appeal-
able. 31 “Trial courts must understand that any action purport-
ing to be a judgment, decree, or final order must be rendered
and entered to be valid, as provided in § 25-1301.” 32
[18,19] We have repeatedly said that a final, appealable
judgment is one that disposes of the case by dismissing it
either before hearing is had upon the merits or after trial
by rendition of judgment for the plaintiff or defendant. 33
Dismissal means there is no longer an action pending before
the trial court and it lacks jurisdiction to make further orders
except to formalize the dismissal. 34 It is only when the court
enters an order of dismissal that the proceedings brought
28 See, 4 Am. Jur. 2d, supra note 15, § 82; 49 C.J.S., supra note 13, §§ 4 and
10.
29 Ramaekers v. Creighton University, 312 Neb. 248, 978 N.W.2d 298
(2022).
30 See State ex rel. Stenberg v. Moore, supra note 11.
31 See Annot., 73 A.L.R.2d 250 (1960).
32 Murray Constr. Servs. v. Meco-Henne Contracting, 10 Neb. App. 316, 318,
633 N.W.2d 915, 916 (2001). See, also, Rosen Auto Leasing v. Jordan, 15
Neb. App. 1, 720 N.W.2d 911 (2006).
33 See, e.g., Paxton v. Paxton, 314 Neb. 197, 989 N.W.2d 420 (2023).
34 See, Saint James Apt. Partners v. Universal Surety Co., ante p. 419, 5
N.W.3d 179 (2024); Childs v. Frakes, 312 Neb. 925, 981 N.W.2d 598
(2022); Dillion v. Mabbutt, 265 Neb. 814, 660 N.W.2d 477 (2003).

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before the court by one party against another and filed under a
particular case number come to an end. 35 Otherwise, the action
remains pending before the court. Especially considering the
amendment to § 25-1301(2), requiring that the judgment be
embodied in a “single written document stating all of the
relief granted or denied in an action,” we find it critical to a
“judgment rendered” and the “rendition of a judgment” that
the court formally grant or deny all of the relief sought in the
action before it. Only by plainly granting or denying all of
the relief sought in the action does the order conclude all the
rights of the parties so that further proceedings cannot affect
them. Only then does the court, in a single written document,
determine the rights and liabilities of the parties to the fullest
extent possible.
The purpose of the amendment of § 25-1301(2) is to add
clarity so that the parties know whether the court has ren-
dered a judgment from which they must timely file a notice of
appeal to protect their right to appellate review. Regardless of
the court’s proclamations regarding the underlying legal and
factual merits of the case, when the court retains the action
rather than plainly granting or denying all of the relief sought
in the action, it is not clear from the court’s single written
order that it has either decided and concluded the rights of
the parties involved or denied a party the means to prosecute
or defend its rights and interests in the subject matter of the
proceeding. The court’s clearly stated final resolution of the
action is essential. In the absence of such, a judgment has not
yet been rendered.
Here, while the court disposed of the motions for summary
judgment, denying D&M’s motion and granting Distribution’s
cross-motion in its December 21, 2022, order, it did not
expressly grant or deny relief with respect to D&M’s breach
of contract claim. Even if one could deduce that the district
court had disposed of D&M’s ability to recover by dismissing
35 See Saint James Apt. Partners v. Universal Surety Co., supra note 34.

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the unjust enrichment claim and denying the necessary ele-
ment of damages in its breach of contract action, the breach of
contract action remained pending because the district court did
not grant or deny relief. The court did not finally determine
the rights of the parties in a single written and signed docu-
ment stating all the relief granted or denied in the action.
The court’s June 12, 2023, order, while adding some clar-
ity to the December 21, 2022, order, suffers the same defect.
Without more, an order denying what the court considered to
be a motion to reconsider, under the mistaken belief that the
prior order was a judgment rendered, is not the rendition of
a judgment.
The court has yet to sign a “single written document” con-
stituting the final determination of the rights of the parties and
stating all the relief granted or denied in the action. 36 Because
of this, we lack appellate jurisdiction. We accordingly must
dismiss the appeal.
VI. CONCLUSION
Because D&M did not appeal from a judgment rendered,
we lack appellate jurisdiction.
Appeal dismissed.
36 See § 25-1301(2).